Tag: law

[John Palfrey and I originally wrote this as an op-ed for the Huffington Post. See HuffPo for more comments.]

On 22 September 2010, the wallet of Tyler Clementi – a gay freshman at Rutgers University – was found on the George Washington Bridge; his body was found in the Hudson River the following week. His roommate, Dharun Ravi, was charged with 15 criminal counts, including invasion of privacy, bias intimidation, and tampering with witnesses and evidence tampering. Ravi pleaded not guilty.

Ravi’s trial officially begins this week, but in the court of public opinion, he has already been convicted. This is a terrible irony, since the case itself is about bullying.

Wading through the news reports, it’s hard to tell exactly what happened in the hours leading up to Clementi’s suicide. Some facts are unknown. What seems apparent is that Clementi asked Ravi to have his dormroom to himself on two occasions – September 19 and 21 – so that he could have alone time with an older gay man. On the first occasion, Ravi appears to have jiggered his computer so that he could watch the encounter from a remote computer. Ravi announced that he did so on Twitter. When Clementi asked Ravi for a second night in the room, Ravi invited others to watch via Twitter. It appears as though Clementi read this and unplugged Ravi’s computer, thereby preventing Ravi from watching. What happened after this incident on September 21 is unclear. A day later, Clementi’s body was discovered.

The media-driven narrative quickly blamed Ravi and his friend Molly Wei, from whose room Ravi watched Clementi. Amidst a series of other highly publicized LGBT suicides, Clementi’s suicide was labeled as a tragic product of homophobic bullying. Ravi has been portrayed as a malicious young man, hellbent on making his roommate miserable. Technology was blamed for providing a new mechanism by which Ravi could spy on and torment his roommate. The overwhelming presumption: Ravi’s guilty for causing Clementi’s death. Ravi may well be guilty of these crimes, but we have trials for a reason.

As information has emerged from the legal discovery process, the story became more complicated. It appears as though Clementi turned to online forums and friends to get advice; his messages conveyed a desire for getting support, but they didn’t suggest a pending suicide attempt. In one document submitted to the court, Clementi appears to have written to a friend that he was not particularly upset by Ravi’s invasion. Older digital traces left by Clementi – specifically those produced after he came out to and was rejected by those close to him – exhibited terrible emotional pain. At Rutgers, Clementi appears to have been handling his frustrations with his roommate reasonably well. After the events of September 20 and 21, Clementi appears to have notified both his resident assistant and university officials and asked for a new room; the school appears to have responded properly and Clementi appeared pleased.

The process of discovery in a lawsuit is an essential fact-finding exercise. The presumption of innocence is an essential American legal principle. Unfortunately, in highly publicized cases, this doesn’t stop people from jumping to conclusions based on snippets of information. Media speculation and hype surrounding Clementi’s suicide has been damning for Ravi, but the incident has also prompted all sorts of other outcomes. Public policy wheels have turned, prompting calls for new state and federal cyberbullying prevention laws. Well-meaning advocates have called for bullying to be declared a hate crime.

As researchers, we know that bullying is a serious, urgent issue. We favor aggressive and meaningful intervention programs to address it and to prevent young people from taking their lives. These programs should especially support LGBT youth, themselves more likely to be the targets of bullying. Yet, it’s also critical that we pay attention to the messages that researchers have been trying to communicate for years. “Bullies” are often themselves victims of other forms of cruelty and pressure. Zero-tolerance approaches to bullying don’t work; they often increase bullying. Focusing on punishment alone does little to address the underlying issues. Addressing bullying requires a serious social, economic, and time-based commitment to educating both young people and adults. Research shows that curricula and outreach programs can work. We are badly underfunding youth empowerment programs that could help enormously. Legislative moves that focus on punishment instead of education only make the situation worse.

Not only are most young people often ill-equipped to recognize how their meanness, cruelty, and pranking might cause pain, but most adults are themselves are ill-equipped to help young people in a productive way. Worse, many adults are themselves perpetuating the idea that being cruel is socially acceptable. Not only has cruelty and deception become status quo on TV talk shows; it plays a central role in televised entertainment and political debates. In contemporary culture, it has become acceptable to be outright cruel to any public figure, whether they’re a celebrity, reality TV contestant, or teenager awaiting trial.

Tyler Clementi’s suicide is a tragedy. We should all be horrified that a teenager felt the need to take his life in our society. But in our frustration, we must not prosecute Dharun Ravi before he has had his day in court. We must not be bullies ourselves. Ravi’s life has already been destroyed by what he may or may not have done. The way we, the public, have treated him, even before his trial, has only made things worse.

To combat bullying, we need to stop the cycle of violence. We need to take the high road; we must refrain from acting like a mob, in Clementi’s name or otherwise. Every day, there are young people who are being tormented by their peers and by adults in their lives. If we want to make this stop, we need to get to the root of the problem. We should start by looking to ourselves.

danah boyd is a senior researcher at Microsoft Research and a research assistant professor at New York University. John Palfrey is a professor of law at Harvard Law School.

Yesterday the Supreme Court ruled on United States vs. Jones [PDF of court opinion], a case in which the FBI/DC police placed a GPS tracking device on the Jeep Cherokee of Antoine Jones, a club owner in DC who was suspected of dealing cocaine. The cops tracked Mr. Jones for 28 days, and, based on that evidence (as well as a CCTV camera pointing at the club door, a pen register (*) and a wiretap on Jones’s cellphone), charged him with conspiracy and possession with intent. Jones appealed, saying that the GPS data should be inadmissible since it was collected without a warrant.

The Supreme Court held up the ruling of the DC Court of Appeals in a unanimous 9-0 decision, saying that a) this was a search b) a car is a person’s property, or “effects”, and thus affixing a GPS to the undercarriage of the car violates the Fourth Amendment. From the ruling:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

What’s interesting here is that there was a 5-4 split on why the Justices ruled as they did. Justice Sotomayor, writing a concurrent opinion, wrote, “When the Government physically invades personal property to gather information, a search occurs.The reaffirmation of that principle suffices to decide this case.” Since the government had invaded property, the Justices did not need to evaluate any of the other principles that this case brings up.

And there are many principles that this case brings up. Sotomayor talks about many of them: what about electronic surveillance if no property was trespassed upon? What about the chilling effects of potential long-term electronic surveillance? What about the fact that GPS monitoring gives far more specific information, and is far easier and cheaper, than traditional visual surveillance? What about the fact that this data can be stored and mined later? She writes:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques… I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goa lto curb arbitrary exercises of police power to and prevent “a too permeating police surveillance.”

But most awesomely, Sotomayor then goes on to critique the third party doctrine. This says that if you disclose information to a third party (whether that’s your sister, Google, or Ma Bell), you have no reasonable expectation of privacy governing that information, and the government has a right to access it. As Sotomayor writes, “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks” like checking email, signing up for Facebook, or buying a pair of shoes online.

In a concurring opinion, four other judges agreed with the majority ruling, but not the use of the property doctrine to decide it. Instead, Alito, Ginsberg, Breyer and Kagan seem suspicious of electronic surveillance overall. In Alito’s concurring judgment, he mentions GPS, road CCTV cameras, electronic toll collectors, and, most interestingly, cell phone location data as potential invasions of privacy. He laments that Congress and state governments have done little or nothing to regulate the use of this data by law enforcement.

I think the SCOTUS is itching for a fight on digital privacy. I’m looking forward to seeing what happens with similar cases in the future.

* Don’t get me started on pen registers. They track what numbers you call, and have the technical capability to track where your cellphone is and even your text messages. Yet the standard for ordering one is much lower than, say, wiretapping; the potential surveillee just has to be part of an ‘ongoing criminal investigation.’ Even more worryingly, Chris Soghoian has documented that law enforcement makes tens of thousands of requests to phone companies for cell phone location information. Requests to internet companies for location information are not even subject to the pen register standard; all they need is a subpoena.

“At what age should I let my child join Facebook?” This is a question that countless parents have asked my collaborators and me. Often, it’s followed by the following: “I know that 13 is the minimum age to join Facebook, but is it really so bad that my 12-year-old is on the site?”

While parents are struggling to determine what social media sites are appropriate for their children, government tries to help parents by regulating what data internet companies can collect about children without parental permission. Yet, as has been the case for the last decade, this often backfires. Many general-purpose communication platforms and social media sites restrict access to only those 13+ in response to a law meant to empower parents: the Children’s Online Privacy Protection Act (COPPA). This forces parents to make a difficult choice: help uphold the minimum age requirements and limit their children’s access to services that let kids connect with family and friends OR help their children lie about their age to circumvent the age-based restrictions and eschew the protections that COPPA is meant to provide.

In order to understand how parents were approaching this dilemma, my collaborators — Eszter Hargittai (Northwestern University), Jason Schultz (University of California, Berkeley), John Palfrey (Harvard University) — and I decided to survey parents. In many ways, we were responding to a flurry of studies (e.g. Pew’s) that revealed that millions of U.S. children have violated Facebook’s Terms of Service and joined the site underage. These findings prompted outrage back in May as politicians blamed Facebook for failing to curb underage usage. Embedded in this furor was an assumption that by not strictly guarding its doors and keeping children out, Facebook was undermining parental authority and thumbing its nose at the law. Facebook responded by defending its practices — and highlighting how it regularly ejects children from its site. More controversially, Facebook’s founder Mark Zuckerberg openly questioned the value of COPPA in the first place.

While Facebook has often sparked anger over its cavalier attitudes towards user privacy, Zuckerberg’s challenge with regard to COPPA has merit. It’s imperative that we question the assumptions embedded in this policy. All too often, the public takes COPPA at face-value and politicians angle to build new laws based on it without examining its efficacy.

Although Facebook’s minimum age is 13, parents of 13- and 14-year-olds report that, on average, their child joined Facebook at age 12.

Half (55%) of parents of 12-year-olds report their child has a Facebook account, and most (82%) of these parents knew when their child signed up. Most (76%) also assisted their 12-year old in creating the account.

A third (36%) of all parents surveyed reported that their child joined Facebook before the age of 13, and two-thirds of them (68%) helped their child create the account.

Half (53%) of parents surveyed think Facebook has a minimum age and a third (35%) of these parents think that this is a recommendation and not a requirement.

Most (78%) parents think it is acceptable for their child to violate minimum age restrictions on online services.

The status quo is not working if large numbers of parents are helping their children lie to get access to online services. Parents do appear to be having conversations with their children, as COPPA intended. Yet, what does it mean if they’re doing so in order to violate the restrictions that COPPA engendered?

One reaction to our data might be that companies should not be allowed to restrict access to children on their sites. Unfortunately, getting the parental permission required by COPPA is technologically difficult, financially costly, and ethically problematic. Sites that target children take on this challenge, but often by excluding children whose parents lack resources to pay for the service, those who lack credit cards, and those who refuse to provide extra data about their children in order to offer permission. The situation is even more complicated for children who are in abusive households, have absentee parents, or regularly experience shifts in guardianship. General-purpose sites, including communication platforms like Gmail and Skype and social media services like Facebook and Twitter, generally prefer to avoid the social, technical, economic, and free speech complications involved.

While there is merit to thinking about how to strengthen parent permission structures, focusing on this obscures the issues that COPPA is intended to address: data privacy and online safety. COPPA predates the rise of social media. Its architects never imagined a world where people would share massive quantities of data as a central part of participation. It no longer makes sense to focus on how data are collected; we must instead question how those data are used. Furthermore, while children may be an especially vulnerable population, they are not the only vulnerable population. Most adults have little sense of how their data are being stored, shared, and sold.

COPPA is a well-intentioned piece of legislation with unintended consequences for parents, educators, and the public writ large. It has stifled innovation for sites focused on children and its implementations have made parenting more challenging. Our data clearly show that parents are concerned about privacy and online safety. Many want the government to help, but they don’t want solutions that unintentionally restrict their children’s access. Instead, they want guidance and recommendations to help them make informed decisions. Parents often want their children to learn how to be responsible digital citizens. Allowing them access is often the first step.

Educators face a different set of issues. Those who want to help youth navigate commercial tools often encounter the complexities of age restrictions. Consider the 7th grade teacher whose students are heavy Facebook users. Should she admonish her students for being on Facebook underage? Or should she make sure that they understand how privacy settings work? Where does digital literacy fit in when what children are doing is in violation of websites’ Terms of Service?

At first blush, the issues surrounding COPPA may seem to only apply to technology companies and the government, but their implications extend much further. COPPA affects parenting, education, and issues surrounding youth rights. It affects those who care about free speech and those who are concerned about how violence shapes home life. It’s important that all who care about youth pay attention to these issues. They’re complex and messy, full of good intention and unintended consequences. But rather than reinforcing or extending a legal regime that produces age-based restrictions which parents actively circumvent, we need to step back and rethink the underlying goals behind COPPA and develop new ways of achieving them. This begins with a public conversation.

About Us

The Social Media Collective (SMC) is a network of social science and humanistic researchers, part of the Microsoft Research labs in New England and New York. It includes full-time researchers, postdocs, interns, and visitors. Beginning in 2009, the researchers who now lead the initiative are: Nancy Baym, danah boyd, Kate Crawford, Tarleton Gillespie, and Mary Gray. Our primary purpose is to provide rich contextual understanding of the social and cultural dynamics that underpin social media technologies. We use a variety of methodologies and span multiple disciplines.

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